Removing Reasonable Efforts from the Equation

Via Jamie Satterfield at the Knoxville News Sentinel's "Lady Justice Unmasked" blog, we have a ruling from the Tennessee Supreme Court that shocks absolutely no one who does work in Tennessee's Juvenile Justice system. The Department of Children's Services is now under no restraint whatsoever to prove they have made reasonable efforts to reunite children with their families in termination of parental rights cases.

After reviewing the language of Section 36-1-113, other pertinent statutes, the legislative history, and caselaw interpreting Section 36-1-113, we hold that, in a termination proceeding, the extent of the efforts made by the State is weighed in the court’s best-interest analysis, but the State need not prove that it made reasonable efforts as an essential component of its petition to terminate parental rights.

Prior to this new ruling by the state's High Court, there had been a split between authority as to whether the Department had to prove reasonable efforts to reunite children with families at the TPR stage of juvenile proceedings. The "In re Kaliyah S. et al" ruling from the State Supreme Court is meant to clarify that and absolve the Department of any duty they may have to attempt "reasonable efforts" at reunification once the proceedings against parents move to a full-blown termination of parental rights.

Prior to the Kaliyah S. ruling, many courts focused on "reasonable efforts" as being a cornerstone of the Department's case when terminating a parent's parental rights. This came from a 2004 case which recognized the rights for parents to see to the care and upbringing of their children as a key cornerstone of our rights and liberties. In re C.M.M. intimated once the Department took on the job of providing "reasonable efforts" to reunify children with their families, they were under the same obligation at the Termination stage of the proceeding.

Kaliyah S. removes that troublesome obligation, and allows the department to simply proceed with proving their grounds for termination of parental rights once a case escalates to that stage. It works in theory, and also in theory removes the troublesome split in the law C.M.M. caused and simply clarifies the law: the Department must show "reasonable efforts" through Dependency and Neglect scenarios, but the ship has sailed once the case takes a turn into TPR territory and proving the Department has done everything it can doesn't become a factor for stripping a parent of their ability to raise their children.

This was a great idea, in theory.

Let's look at the reality. A parent comes before the Department as a problem case, and there are "concerns" that need to be addressed by the parent before he or she can achieve their goal of reunification with a child. So the Department identifies a series of obstacles the would-be successful parent must surmount, and then promises "services" to achieve these goals. When the parent can't afford the added cost, or can't respond in the time frame requested by the Department, these factors become "concerns" mounted on the list of added issues the parent needs to surmount in order to come home to their kids. Eventually, the parent begins to get frustrated. He or she feels as though the odds are against them. The fix is in, and there's nothing anyone can do to make the process easier on either party. They eventually give in to the pressures of the government and are worn down to nothing shortly before the Department files its paperwork for termination of parental rights.

It doesn't have to be one case, either. The Department's "Criteria for Termination of Parental Rights" handed out at every Child and Family Team Meeting states that if a child is in DCS custody for a certain number of months, then the family proceeds to the DCS goal of terminating parental rights. You don't even have to be attempting to meet the Department's draconian goals; you just have to "screw up" on their radar enough to where they judge you unfit to parent. This new procedural boondoggle allowed by Tennessee's High Court puts families who are on DCS's radar more than once in the bracket of "unfit parent" and gives the Department carte blanche to give up on families they see as not fitting the factory-floor model.

Justice Kirby gives the qualifying language in this matter:

We arrive at this conclusion with great care, recognizing the impact of a judicial decree to terminate the parental rights of a biological parent. No civil action carries with it graverconsequences than a petition to sever family ties irretrievably and forever.

Yes, Justice Kirby, and there's nothing more damaging to a family than applying a one size fits all, "consistent" statutory structure to the way you handle complex, messy issues like parenting a child. By washing DCS's hands at the last, final level of even a perfunctory response for the question of "did you do everything you could to put this family back together" you've finally achieved what every family attorney who's worked in Tennessee's Juvenile Court knows:

DCS is there to provide services for those children they deem "at risk" and snatch children from homes they believe are unfit: nothing more.